Children's hearings training resource manual: volume 1
Volume 1 contains the Children's Hearings (Scotland) Act 2011 and new rules regarding legislation and procedures.
3 Matters for Determination by a Pre-hearing Panel
Whether to deem someone a relevant person
Where requested to do so by:
- an individual
- the child or
- a relevant person in relation to the child.
the reporter must refer to a pre-hearing panel the question about whether the individual in question should be deemed to be a relevant person. The reporter may also refer this matter to a pre-hearing panel on his/her own initiative. (s 79(2))
A pre-hearing panel must deem an individual to be a relevant person if that person:
- has significant involvement in the upbringing of the child
- has recently had significant involvement in the upbringing of the child.
Where a pre-hearing panel makes a determination that an individual is a relevant person, the relevant person has the full range of rights accorded to relevant persons in relation to any pre-hearing panels, children's hearings, appeals, court proceedings and rights of review. (s 81(4))
If a pre-hearing panel decides to deem someone to be a relevant person, they will remain a relevant person until at least after the next review of the order. (s 142)
Decisions to deem or not to deem a person to be a relevant person are appealable to the sheriff by the child, any relevant person in relation to the child and any person who requested to be deemed a relevant person within 7 days of the decision. (s 160)
For more information about determining deemed relevant person status and significant involvement, refer to Section 5 of the Legislation and Procedure Handbook.
Other matters for determination by a pre-hearing panel
Where requested to do so by
- a child
- a relevant person or a
- safeguarder if appointed for the child.
or at the reporter's own initiative, a pre-hearing panel may make a determination on the following matters:
- whether the child should be excused from attending their children's hearing
- whether a relevant person should be excused from attending a children's hearing
- whether a children's hearing is likely to make a decision including a secure authorisation in relation to a child
- any other procedural matters specified in the Rules.
Excusing a child's attendance at a children's hearing
A pre-hearing panel may be asked to make a determination about whether the child should be present at their hearing. A pre-hearing panel may only excuse a child from attending a children's hearing if at least one of the following apply:
- The case involves an offence mentioned in Schedule 1 of the Criminal Procedure (Scotland) Act 1995 or Part 1, 4, 5 of the Sexual Offences (Scotland) Act 2009 and the attendance of the child at the hearing is not necessary for a fair hearing.
- The attendance of the child at the hearing would place the child's physical, mental or moral welfare at risk. or
- Taking account of the child's age and maturity, the child would not be capable of understanding what happens at the hearing. (s 73(3))
A child should only be excused from attendance at a hearing if at least one of the criteria applies. The first category is one based on fact and will be easily determined by the pre-hearing panel:
- either the case does or does not involve a Schedule 1 offence or
- an offence from the Sexual Offences (Scotland )Act 2009
and the child's presence is not necessary for a fair hearing.
The second category is far more complex and one where the pre-hearing panel must interpret and come to a decision based on the discussion. The threshold for this is high and non attendance of the child should be the rare exception and not the rule.
The pre-hearing panel would have to be satisfied that there 'would' be an identified risk in relation to the child. For physical risk- this criterion might be met if there had been a physical assault on the child at a hearing and there were concerns that this would occur again or simply that there were threats to harm the child at the hearing.
For mental risk - this criterion might be met if there was perhaps a potentially damaging piece of information which was unknown to the child. For moral risk - this might be met by the presence of a person at the hearing whose presence might have a corrupting influence on a child.
The third category is easier to interpret. A pre-hearing panel may excuse the child from attendance at the children's hearing if they consider that the child would not be able to understand what happens at the hearing because of their age and maturity.
The provision is a discretionary one. It is important to remember that a child has an absolute right to attend a children's hearing in relation to their situation and panel members should not feel pressurised to excuse a child if they do not wish to do so. A great deal of information can be gathered by observing the child's behaviour and the interaction between the child and the adults present. Regardless of the pre-hearing panel's decision a child may still decide to attend the hearing.
Excusing a child's attendance from a section 67 grounds hearing
If the pre-hearing panel are considering whether to excuse the child from attending a grounds hearing, the child can only be excused while the grounds are being explained if they are satisfied that taking account of the child's age and maturity, the child would not be capable of understanding the explanation. A grounds hearing can require the reporter to arrange another grounds hearing if the child or relevant person fails to attend and has not been excused.
Excusing a relevant person's attendance at a children's hearing
A pre-hearing panel may only excuse a relevant person from attending the children's hearing if:
- it would be unreasonable to require their attendance for all or part of the hearing or
- their attendance at all or part of the hearing is thought to be unnecessary for the proper consideration of the case (s79(5))
It should be noted that in order to excuse a relevant person from attending a children's hearing at least one of the categories must apply. It may be unreasonable for a relevant person to attend a children's hearing if that person is abroad and cannot return in time for the hearing. Being at work is not likely to be a good reason to excuse a parent as there should be flexibility in terms of the time and date for most non emergency hearings.
The second category of 'unnecessary for the proper consideration of the case' might be met if the child has had no relationship with a relevant person for a number of years and that person plays no part in their life.
A children's hearing is likely to make a decision including a secure authorisation in relation to a child
Where a pre-hearing panel has decided that it is likely a children's hearing will consider making a compulsory supervision order or an interim compulsory supervision order including secure authorisation in relation to a child, the reporter must, as soon as it is possible, notify the Scottish Legal Aid Board and give them the name and address of the child so that legal assistance can be made available to the child.
Legal assistance for child or relevant persons
Where a pre-hearing panel arranged for any purpose recommends that
- in order for the child or any relevant person to participate effectively in the children's hearing, it is necessary that the child or relevant person be represented by a solicitor and
- it is unlikely that the child or relevant person will arrange to be represented by a solicitor or counsel.
the reporter must as soon as possible notify the Scottish Legal Aid Board and give them the name and the address of the child or relevant person.
Legal assistance will be needed for the following reasons, for example,
- The case contains complex legal issues
- The person may not be able to participate effectively without the assistance of a solicitor.
The child in these circumstances must have capacity to instruct and a child aged 12 or over is deemed to be able to give instructions to a legal representative, however a younger child may also be able to instruct. It is important to remember that the pre-hearing panel does not make the appointment; this matter will be considered by the Scottish Legal Aid Board ( SLAB) who will consider whether the criteria are met. (Rule 50)
The reporter may refer the matter of whether a particular individual should be deemed a relevant person to a pre-hearing panel if asked to do so by the individual themselves, by the child or by the relevant persons. The reporter can also refer the matter of whether someone is a relevant person to a pre-hearing panel on their own account if they consider it appropriate to do so.
The child, relevant person and anyone whose status as a relevant person is being considered will have a right but not a duty to attend the pre-hearing panel. There is no need to formally excuse the child/relevant person(s) if they do not attend but the pre-hearing panel should check they have been made aware of the meeting.
A pre-hearing panel is able to appoint a safeguarder. The pre-hearing panel does not have to actively consider this in every case but panel members should be aware that they can appoint and raise the issue when appropriate.
Where a pre-hearing panel have determined that a solicitor or counsel is necessary for a child or relevant person in order for them to participate effectively in the children's hearing and that they are unlikely to arrange to be represented by a solicitor or counsel themselves, the pre-hearing panel must ask the reporter to notify the SLAB.
When a pre-hearing panel is convened to make a determination in relation to a matter, they must make the determination and the matter cannot be deferred.
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